Court Hears Arguments On Decency Law

WASHINGTON — Justice Antonin Scalia summed up the Supreme Court's problem Wednesday in trying to protect children from indecency on the Internet without trampling free-speech rights.

"This is an area where change is enormous," the most voluble of the justices confessed to a crowded courtroom. "I throw away my computer every five years, and so do most people."

The key question, Scalia said, was how a law--namely, the 1996 Communications Decency Act--can keep up with the rapid and revolutionary changes in information technology.

"Is it possible the law is unconstitutional today but will be constitutional next week or in two years?" Scalia asked.

"Not as it's now written," responded Bruce Ennis, counsel for dozens of plaintiffs headed by the American Civil Liberties Union and the American Library Association.

A three-judge panel in Philadelphia last year declared unconstitutional portions of the law that criminalized the display and communication of "patently offensive" and "indecent" material to minors. The government has appealed the ruling to the high court.

Defending the law was Seth Waxman, a Justice Department lawyer who tried to apprise the court of the enormity of the problem: 8,000 sites offering sexually explicit material, with the number doubling every nine months.

In effect, he said, the Internet offers every child with an interactive computer "a free pass into the equivalent of every adult bookstore and every adult video store in the country."

Justice Stephen Breyer pressed Waxman about how the law applies to teenagers who swap accounts of their sexual experiences or borrow from magazines and books to describe these experiences on the Internet.

"My concern," Breyer said, "is that suddenly it would make a large number of high school students guilty of crime."

Waxman tried to explain that the law makes a distinction between "discussion" and "communicating," but the courtroom broke into laughter when the garrulous Scalia interjected: "There's no high school student exemption?"

Justices Sandra Day O'Connor and Anthony Kennedy questioned whether the Internet is comparable to public streets and parks, where speakers are normally allowed to speak their minds.

But Waxman said that, if a "patently offensive" performance were offered at the Sylvan Theater on the Washington Monument grounds, it would "not be unlawful" for the Park Service to screen attendees for age.

Waxman also reminded the justices that they could fine-tune the law and clear up some of the objections. After all, he said, the court has the authority "to construe" and "partially invalidate" these portions of the law.

Both sides of the case offered differing opinions on blocking devices.

Webb contended there was simply no way parents and software companies can keep up with what should be screened out for children.

Ennis pointed out, however, that the lower court found a broad range of software programs available to parents to screen access to the Internet.

He also noted that for 40 years the court has never forced adults to read only what is appropriate for children.

Sexually oriented material is protected by the Constitution's 1st Amendment if it is deemed indecent but not obscene.

Among the courtroom spectators was Sen. Patrick Leahy (D-Vt.), the chief sponsor of legislation to repeal the controversial 1996 law.

"The justices showed a good working knowledge of the issues," Leahy said afterward. "The arguments were sharply drawn, and the justices' questions on point. The exchanges shed more light on the subject, which is not always the case on the Senate floor."

The court is expected to issue an opinion in the case before its summer recess at the end of June.